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Corporation is consistent with the original MLRB permit issued to Cotter Corporation for the SM-18 Mine issued December 31, 1979 which states that "[d]uring the course ofthe mining operations, Cotter Corporation shall not allow the total disturbed acreage to exceed 14.90 acres...." Lastly, the SM-18 Mine's 112 status is evidenced by the Notice of Fling Application to the Board of County Commissioners of Montrose County for a Technical Revision To Regular (112) Hardrock/Metal Mining Permit No. M-1978-I 16 wherein Cotter Corporation states that it "has applied for a Technical Revision to a Regular (112) reclamation permit from the Colorado Mined Land Reclamation Board (the "Board') in Montrose County." This voluminous evidence confirms the SM-18 Mine's status as a 112 operation, and despite any DMG documents stating to the contrary, the DMG should proceed with consideration of its DMO status based on rules applicable to a 112 operation. Whether the SM-18 Mine is a 110 or a 112 operation bears directly on the applicable standard applied by the DMG in determining DMO status for the operation. For instance, the Mineral Rules and Regulations of the Colorado Mined Land Reclamation Board (MLRB) for Hard Rock, Metal and Designated Mining Operations allow for expanded regulatory flexibility for DMO determinations for 110 operations that is not available for 112 operations. Specifically, Hard Rock/Metal Mining Rule (HRMM Rule) 1.1(14) defines "Designated Mining Operation" as "a mining operation at which...(b) toxic or acid-forming materials will be exposed or disturbed as a result of mining operations...." That Rule definition goes on to allow exemption for 110 operations that is not available to 112 operations: "[m]etal mining operations, permitted under Section 34-32-110, C.R.S. 1984, as amended, which do not use or store designated chemicals, shall be exempt from the requirements applicable to Designated Mining Operations, unless they have a potential to produce acid mine drainage in quantities sufficient to adversely affect any person, property or the environment." HRMM Rule 1.1(14)(e). See also, HRMM Rule 7.2.4(1) -~ ("The Office's determination of a Designated Mining Operation is based on the criteria described in the definition for Designated Mining Operation in Paragraph 1.1(14)."). Pursuant to the plain language of the applicable MLRB rules, if a mining operation is permitted as a 110, it may avail itself to the Rule 1.1(14)(e) exemption to DMO status. Amine permitted as a 112 operation, however, may not. In this case, the HRMM Rule 1.1(14)(e) exemption appears to be the basis ofthe DMG's determination that the SM-18 Mine is not a DMO. See March 9, 2006 letter from H. Bruce Humphries to Glen Williams, Cotter Corporation Re: SM-18 Mine, Permit No. M-1978-316, Determination ofNon-Designated Mining Operation Status (basing non-DMO status on a finding that "Cotter Corporation has satisfactorily demonstrated that that operation does not expose or disturb acid or toxic materials in quantities that adversely affect human health, property or the environment.") However, because the SM-18 Mine is a 112 operation, HRMM Rules 1.1(14) and 7.2.4 do not provide for any exemption from DMO status, so long as toxic or acid-forming materials will be exposed or disturbed as a result of mining operations. In this case, the record is clear that the waste rock leach tests performed by the DMG evidence toxic materials exposed, disturbed, and transported into the groundwater at the mine site, including aluminum, selenium, uranium, lead, and zinc. See Tune 15, 2005 Memorandum from Harry Posey to Steve Shuey and Russ Means Re: SPLP results review: Cotter Corporation, SM-18 (Wright) Mine; M-1978-I 16. 2